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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________
Department of Employment Security
No. 2004-876
APPEAL OF RONALD PELLETERI & a.
(New Hampshire Department of Employment Security)
Argued: September 29, 2005
Opinion Issued: December 9, 2005
Devine, Millimet & Branch, P.A., of Manchester (Mark T.
Broth and Jennifer M.N. Koon, on the brief, and Mr. Broth
orally), for the petitioners.

Kelly A. Ayotte, attorney general (Karen A. Schlitzer,

assistant attorney general, on the brief and orally), and Charles
H. Bradley, III, of Concord, on the brief, for the State.
GALWAY, J. The petitioners, Ronald Pelleteri and other
similarly situated employees of the employer, Pike Industries
(Pike), appeal the denial of unemployment benefits for a period
of time equal to the number of weeks of longevity pay each
petitioner received from Pike. We affirm.
The certified record supports the following facts. Pike is
engaged in the manufacture, sale, and transportation of road
paving materials and the construction and paving of roads and
highways. The majority of Pike's employees are employed on a
seasonal basis. In September 2002, Pike initiated a longevity
pay program for its seasonal employees. On or about November 1,
2002, longevity pay was distributed to eligible employees. In
most cases, this distribution preceded the date of the employee's
seasonal layoff.

After the seasonal layoff occurred, each of the petitioners

applied for unemployment benefits.
The department of employment security (DES) certifying
officer denied petitioner Pelleteri's unemployment benefits from
December 15, 2002, to January 4, 2003, concluding that the
longevity pay constituted wages pursuant to RSA 282-A:15, I, and
applying those wages to the period immediately following the
seasonal layoff pursuant to RSA 282-A:14, III(a). The other
petitioners were denied unemployment benefits on the same basis.
The petitioners appealed to the appeal tribunal, where the
appeals were consolidated.

In their appeal, the petitioners argued that DES'

determination, applying the longevity pay to the period
immediately following each petitioner's layoff, was arbitrary and
unreasonable. They asserted: (1) the longevity pay was a bonus
that was received in November but was earned in the prior
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calendar year, and, therefore, there was "no [reasonable]
relationship between the weeks in which the bonus was earned or
paid and the weeks it was applied to by the DES"; and (2) DES'
determination was contrary to internal DES guidelines governing
bonuses.
The appeal tribunal affirmed DES' determination, concluding
that the petitioners received wages in the form of a longevity
pay bonus. The petitioners requested the commissioner to reopen
the appeal tribunal determination. Characterizing the longevity
pay as a bonus, they challenged the appeal tribunal's findings of
fact and argued that the appeal tribunal erred in ruling that the
payment of the longevity bonus "anticipated" their seasonal
layoff.

The commissioner reopened the appeal tribunal's decision on

a limited basis, concluding that the appeal tribunal may have
mistakenly used the word "bonus" to describe the longevity pay
program, and allowing the appeal tribunal either to amend its
decision and substitute the word "wages" for "bonus," or to
make further rulings if the tribunal intended to rule that
longevity pay actually constitutes a "bonus." The appeal
tribunal's subsequent amended decision concluded that longevity
pay constituted wages rather than a bonus. The petitioners
requested reopening of the amended decision, which the
commissioner denied.

The petitioners appealed the appeal tribunal's amended

decision to the appellate board. Among other things, the
petitioners argued for the first time that RSA 282-A:14, III is
unconstitutionally vague in that it contains no guidance or
standards regarding its application.
Prior to the appellate board hearing, Pike distributed the
2003 longevity pay to its seasonal employees on September 15,
2003. Contrary to its application of the 2002 longevity pay, DES
did not apply the 2003 longevity pay to the weeks immediately
following Pike's seasonal employees' layoffs.
The appellate board sustained the appeal tribunal's
determination, but noted concerns regarding: (1) "the vagueness
of RSA 282-A:14 III and the statute's failure to provide any
criteria relative to the meaning of reasonableness"; and (2)
"the disparate treatment of the Appellant in the application of
RSA 282-A:14 III between the receipt of longevity pay for 2002
and 2003 and the opposite outcomes relative to eligibility for
benefits in each of those respective years." The appellate
board concluded: "This treatment, along with the concerns for
vagueness . . . would most certainly result in the Board's
reversal of the Appeals Tribunal's decision but for the
limitations of RSA 282-A:65." The petitioners then filed a
motion for reconsideration, which the appellate board denied.
The petitioners now appeal the appellate board's final
orders denying their 2002 unemployment benefits for a period
commensurate with the number of weeks of longevity pay received
from Pike. They argue: (1) RSA 282-A:14, III violates the Due
Process Clause of both the Federal and State Constitutions; (2)
RSA 282-A:14, III violates the Equal Protection Clause of both
the Federal and State Constitutions; and (3) RSA 282-A:65
expressly grants the appellate board authority to determine the
constitutionality of RSA 282-A:14, III.

DES counters that: (1) RSA 282-A:67 limits our review to

determinations of the appeal tribunal and not the appellate
board, except insofar as the appellate board may have clarified
or limited the record; and (2) the petitioners waived their
claims regarding the unconstitutionality of RSA 282-A:14, III,
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because they failed to raise these issues before the appeal
tribunal.

When considering an appeal of an administrative DES

decision, "our jurisdiction is limited to reviewing the record
of the appeal tribunal for errors of law, except insofar as that
record may have been clarified or the issues limited in the
course of subsequent proceedings before the appellate [board]."
Appeal of Bosselait, 130 N.H. 604, 606 (1988) (citations
omitted); see RSA 282-A:67, V (1999). On appeal, we consider
only issues that have been both timely raised below and preserved
for our review. Bosselait, 130 N.H. at 606. Thus, we first
consider whether the petitioners' claims regarding the
constitutionality of RSA 282-A:14, III (Supp. 2005) were
preserved for our review.
The appellate board "provides an intermediate
administrative appeal, in which issues previously raised may be
waived or narrowed; it does not provide an opportunity to raise
new issues for the first time." Id. at 607-08. Issues must be
raised at the earliest possible time in order to grant trial
forums a full opportunity "to come to sound conclusions and to
correct claimed errors in the first instance." Bosselait, 130
N.H. at 607 (quotations omitted). "[U]nless a claim is raised
in the trial forum, there is no opportunity for a party to
develop a factual record supporting his theory of relief, or to
make an offer of proof sufficient to justify a demand to
introduce relevant evidence and preserve an issue for appeal."
Id.

Bosselait is squarely on point. In Bosselait, two part-time

employees appealed an appeal tribunal's denial of unemployment
compensation, asserting that a portion of a statute, which the
appeal tribunal relied upon, violated the State equal protection
standard and conflicted with the federal Rehabilitation Act. Id.
at 605, 606. However, the employees failed to raise these claims
before the appeal tribunal; instead, they first raised them in
their request to reopen the appeal tribunal's decision, and again
in their appeal of the appeal tribunal's decision to the
appellate board. Id. at 605-06. In concluding that the
employees' claims were not timely raised, we recognized that
merely listing the equal protection questions in their appeal to
the appellate board was insufficient to preserve them for
consideration on appeal to this court. Id. at 607. We also
noted that one employee's remark to the appeal tribunal that the
relevant statutory provision "was discriminatory against the
aged" was "not sufficient to put anyone on notice that [the
employee] thereby meant to raise a constitutional issue."
Bosselait, 130 N.H. at 607.

Similar to Bosselait, the petitioners in this case failed to

raise their constitutional claims until after the appeal tribunal
had reached a final determination. In their appeal to the appeal
tribunal, and to support their general assertion that the
certifying officer's denial was arbitrary and unreasonable, the
petitioners argued that: (1) there was no relationship between
the weeks in which the longevity pay bonus was earned or paid and
when it was applied; and (2) the certifying officer's
determination was contrary to internal DES guidelines governing
bonuses. The petitioners' arguments neither articulated nor
implicated the constitutional claims they subsequently raised in
their appeal to the appellate board. Consequently, the appeal
tribunal was denied an opportunity to address those issues.
Furthermore, the generalized assertions of unreasonableness that
the petitioners did make before the appeal tribunal did not
constitute sufficient notice that they were raising
constitutional claims. Thus, we conclude the constitutional
issues were not preserved for our review.
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Our conclusion comports with our recent decision in SNCR
Corp. v. Greene, 152 N.H. 223 (2005), a case involving the appeal
of a New Hampshire Department of Labor (DOL) wage claim decision.
In that case, the employer argued on appeal to the superior court
that it had been deprived of its constitutional right to a jury
trial during the DOL hearing process. SNCR Corp., 152 N.H. at
224-25. The superior court affirmed, and the employer appealed.
Id. On appeal, we declined to address either the
constitutionality of the underlying statutes and regulations or
the alleged denial of its constitutional rights, concluding that
the employer failed to preserve these claims for our review
because it failed to raise them at the administrative hearing.
Id. Similarly, the petitioners' failure to raise the
constitutionality of RSA 282-A:14, III before the appeal tribunal
deprived it of the opportunity to address any alleged
constitutional violations.

The petitioners also argue that RSA 282-A:65, I, expressly

grants the appellate board authority to make determinations
regarding the constitutionality of RSA 282-A:14, III. Our
jurisdiction, however, is limited to reviewing the record of the
appeal tribunal for errors of law, except insofar as the appeal
tribunal's record may have been clarified or the issues limited
by the appellate board. See RSA 282-A:67, V(a) (1999);
Bosselait, 130 N.H. at 606. In this instance, the appellate
board neither clarified nor limited the appeal tribunal's record
or determination. The appellate board's observations regarding
potential issues surrounding the statutory language of RSA 282-
A:14, III, are insufficient to bring this issue within our
jurisdiction.

Accordingly, for the foregoing reasons, we affirm the appeal

tribunal's determination, and decline to address the
constitutionality of RSA 282-A:14, III.

Affirmed.

BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

concurred.

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